Saturday, 28 January 2017

Brexit and the Safeguard of EU Transnational Rights - Act II The Supreme Court’s Position

Francesca
Strumia, Lecturer in Law, University of Sheffield

This post is a
follow-up to the post
on the High Court’s position in Miller
on the safeguard of EU Law transnational rights. It considers what the Supreme
Court judgment makes of the High Court position in this respect, and what EU
law questions it implies as a result. The question of transnational rights has
not lost momentum for two reasons. First, beyond the immediate implications for
the few million EU nationals in the UK, and UK nationals in the EU, whose lives
stand to be disrupted by Brexit, it points to the very fabric of the citizens’
individual rights in the EU and thus to the nature of EU law. Withdrawal of a
Member State, whilst expressly provided for in the Treaties and whilst a
legitimate sovereign decision under international law, risks pitting two
fundamental values underpinning the European Union order one against the other:
democracy (as expressed by the will of majorities or arguable majorities at the
national level) and individual rights that cut across borders. Second, and
relatedly, it is a question that the CJEU will likely have to address if the
quandaries surrounding withdrawal ultimately reach its docket, as is expected
through the planned
litigation in Irish courts.

The High Court
in November flirted with the question of the safeguard of transnational rights,
as I analyzed in the previous post. The Supreme Court judgment does not address
the question directly, let alone answer it. Its central point is that
withdrawal of the UK from the EU, by resulting in removal of EU law as a source
of law, will induce a fundamental change in the UK’s constitutional
arrangements. Such a momentous change cannot be triggered by prerogative and
requires an act of Parliament. In weaving this argument, the Supreme Court
judgment bears on the problem of EU transnational rights in two respects.
First, directly, because other than the High Court, it suggests that safeguard
of EU law’s transnational rights is not necessarily within the remit of
Parliament. Second, indirectly, because it engages with the special nature of
the EU Treaties and uses such specialty as a foundation for its argument. I
will consider each aspect in turn.

From the first
perspective, the Supreme Court recuperates the High Court’s analysis of the EU
law rights that have gained domestic law status and that withdrawal will
affect: rights capable of replication in UK domestic law, rights derived by UK
nationals in other Member States, and ‘club membership rights’ such as rights
of participation in EU institutions (par. 69-73). The High Court had suggested
that even rights in the second category, albeit harder to characterize as
domestic law, were intended by Parliament as ‘wider rights of British
citizens’, and hence could not be removed by ministers exercising the
prerogative.

The Supreme Court focuses on the first category and eschews the
other two. Its argument in this respect is that if the claimants cannot rely on
loss of rights in the first category – that best fit the notion of domestic law
– to support their argument against the use of the prerogative, even less can
they rely on loss of rights in the other two – that rather embrace a set of
transnational rights –. And if they can rely on loss of rights in the first
category, then there is no need to engage the other two. So transnational
rights, with which the High Court had timidly engaged, are gently pushed out of
the way of the constitutional question at the heart of the judgment.

The gist of the
argument through which the Supreme Court solves that constitutional question is
in the specialty of the EU Treaties. And here comes the second aspect. In the
normal course of things – the judgment recalls – the royal prerogative covers
the making and unmaking of treaties. This is on the assumption that the power
to make and unmake treaties does not affect domestic law.

That assumption rests
in turn on two propositions: that
treaties take effect in international law and are not governed by domestic law; and that they do not create or alter domestic law and rights. (par. 54-56).
However the EU Treaties are exceptional. They do not only concern international
relations, but they are a source of domestic law and of domestic legal rights
(par. 86); their nature is ‘unusual’ (par. 88); and they are ‘unique in their
legislative and constitutional implications’ (par. 90). This Supreme Court
argument on the exceptionalism of the EU Treaties, whilst remaining in part
undefined as Professor Elliott notes in his post,
echoes one of the landmark arguments of the CJEU. The specialty of the EU
Treaties, according to the CJEU, is in that they constitute a ‘new legal order
of international law’. The subjects of this order comprise ‘not only member
states but also their nationals’. And ‘community law therefore not only imposes
obligations on individuals but is also intended to confer upon them rights
which become part of their legal heritage’. (Van Gend en Loos).

Nothing new for
anyone remotely acquainted with EU law. The novelty is in the new shades that
these arguments take when indirectly recalled by the UK Supreme Court in the
context of withdrawal of a Member State. How are the rights and obligations of
the Member States that the EU Treaties enshrine on the international level –
including the right to withdraw from the Treaties – to be reconciled with the
rights that this new legal order has made part of the citizens’ legal heritage
even ‘independently of the legislation of the Member States’ (in the words of
the CJEU)? That, is a question of EU law. And some of those rights – by the
way- are not domestic law rights. As Lord Reed makes clear in his dissent (par.
218), there are elements of EU law that depend on reciprocal arrangements with
other Member States or on the participation of EU institutions. Transnational
rights come back through the side door.

This underlying
EU law question that the Supreme Court judgment just hints to did not make it
to the CJEU on this occasion. However a version of it may still make it to
Luxembourg in the twists and turns of the other planned proceedings. The
question has systemic, theoretical and practical nuances. Systemic, because it
calls for identifying the checks and balances that may safeguard, in the new
legal order that is EU law, the competing interests of national majorities and
transnational minorities. Theoretical, because on its answer depend the chances
of ever taking transnational rights seriously again. And practical, in terms of
the identification of the legal frames that may safeguard transnational rights
in the context of EU withdrawal, both within EU law (duty of sincere
cooperation?) and beyond (does a host Member State ever become, for instance,
one’s ‘own country’ within the meaning of article 12 of the International
Covenant on Civil and Political Rights?).

Ultimately, the potential
question for the CJEU addresses the conundrum that was exposed at the beginning
and that explains the discomfort that Brexit causes beyond its own
contingencies: how to square domestic democratic choices underpinning the
exercise of Member States’ rights and obligations at the international level
with individual transnational rights that the EU special legal order has long
promised. At stake are the prospects of the most special creature that the 20th
century international legal order has bred.